Citation Nr: 1009943
Decision Date: 03/16/10 Archive Date: 03/24/10
DOCKET NO. 08-22 878A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for hepatitis C.
2. Entitlement to service connection for hypertension, to
include secondary to hepatitis C.
3. Entitlement to service connection for a left hernia scar.
4. Entitlement to service connection for cancer, to include
due to exposure to Agent Orange.
5. Entitlement to an increased (compensable) rating for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Appellant, his spouse, and his daughter
ATTORNEY FOR THE BOARD
David T. Cherry, Counsel
INTRODUCTION
The Veteran served on active duty from July 1942 to November
1945 and from October 1948 to May 1974.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from rating decisions by the Hartford, Connecticut,
Department of Veterans Affairs (VA) Regional Office (RO).
In November 2007, the Veteran testified at a hearing held at
the RO before a Decision Review Officer. Later, the
appellant, his spouse, and his daughter testified at a
January 2010 video conference hearing held before the
undersigned Veterans Law Judge.
In a September 1974 rating decision, the RO denied
entitlement to service connection for hepatitis. The RO
reviewed the recent hepatitis claim on a new and material
basis. The Veteran is now claiming that he has hepatitis C.
Since the appellant is now claiming a specific form of
hepatitis that was not recognized in 1974 as a distinct type
of hepatitis, the Board finds that this is a different claim
than the one he filed in 1974. Boggs v. Peake, 520 F.3d 1330
(Fed. Cir. 2008). Hence, this claim will be reviewed on a de
novo basis, and not as a claim to reopen.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issues of entitlement to service connection for cancer
and entitlement to an increased (compensable) rating for
bilateral hearing loss are addressed in the REMAND portion of
the decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The competent medical evidence preponderates against
finding that the Veteran currently has hepatitis C due to
service.
2. The competent medical evidence preponderates against
finding that the appellant currently has hypertension due to
service.
3. The competent medical evidence shows that the claimant
did not have a left hernia or residuals thereof during his
first period of active service.
4. Clear and unmistakable evidence establishes that the
Veteran underwent a hernia surgery that resulted in scarring
prior to his entry into his second period of active duty.
5. Clear and unmistakable evidence establishes that the
appellant's pre-existing left hernia scar was not aggravated
by his second period of military service.
CONCLUSIONS OF LAW
1. Hepatitis C was not incurred or aggravated while on
active duty. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303
(2009).
2. Hypertension was not incurred or aggravated while on
active duty, and it may not be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.304, 3.307, 3.309(e), 3.310.
3. A left hernia scar was not incurred or aggravated while
on active duty. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act
The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have
been met. There is no issue as to providing an appropriate
application form or completeness of the application. As for
the service connection claims, VA notified the Veteran in
February, June, and November 2007 of the information and
evidence needed to substantiate and complete a claim, to
include notice of what part of that evidence is to be
provided by the claimant, and notice of what part VA will
attempt to obtain. The claims were readjudicated in
statements of the cases issued in July and December 2008. As
to the theory of entitlement relating hypertension to
hepatitis, the RO did not provide the Veteran with notice
regarding secondary service connection, but that omission was
not prejudicial because the preponderance of the evidence is
against the claim of entitlement to service connection for
hepatitis, the underlying disability.
VA fulfilled its duty to assist the appellant in obtaining
identified and available evidence needed to substantiate the
claims being adjudicated to the extent possible, and, as
warranted by law, afforded a VA examination. The RO obtained
the Veteran's service treatment records. Any examination
conducted at the time of the appellant's return to service in
1948 is unavailable. Thus, the Board has heightened duties
to assist and in explaining the decision. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991). The RO asked the
appellant to submit medical records regarding treatment of
hepatitis C, hypertension, and a left hernia scar, and
offered to obtain any identified records if the claimant
would authorize the release of such records. The Veteran did
not submit any treatment records, nor did he authorize the
release of any such records.
VA did not provide the Veteran with examinations in
connection with his claims of entitlement to service
connection for hepatitis C, hypertension, and a left hernia
scar. The Board finds that examinations were not necessary
to decide the merits of these claims. Under the VCAA, VA is
obliged to provide an examination when the record contains
competent evidence that the claimant has a current disability
or signs and symptoms of a current disability; the record
indicates that the disability or signs and symptoms of
disability may be associated with active service; and the
record does not contain sufficient information to make a
decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §
3.159(c)(4).
Admittedly, the threshold for the duty to provide an
examination is rather low. McLendon v. Nicholson, 20 Vet.
App. 79 (2006). Here, however, the evidence of record is
sufficient to decide the claims of entitlement to service
connection for hepatitis C, hypertension, and a left hernia
scar.
The Veteran has not submitted or identified competent medical
evidence showing a current diagnosis of hepatitis C or
hypertension. There is sufficient competent evidence to
determine whether the left hernia scar preexisted the
appellant's second period of active service and to determine
whether it was aggravated during or by the second period of
active service.
There is not a scintilla of evidence that any VA error in
notifying or assisting the Veteran reasonably affects the
fairness of this adjudication.
1. Entitlement to service connection for hepatitis C.
Governing law and regulations
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997).
To be present as a current disability, the claimed condition
must be present at the time of the claim for benefits, as
opposed to sometime in the distant past. Gilpin v. West, 155
F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that
there be a current disability is satisfied when the
disability is shown at the time of the claim or during the
pendency of the claim, even though the disability
subsequently resolves. McClain v. Nicholson, 21 Vet. App.
319, 321 (2007).
In a VA "Fast Letter" issued in June 2004 (Fast Letter 04-
13, June 29, 2004), VA noted that a rating decision had been
issued that was apparently based a statement incorrectly
ascribed to a VA physician to the effect that persons who
were inoculated with a jet injector were at risk of having
hepatitis C. The fast letter then identified "key points"
that included the fact that hepatitis C is spread primarily
by contact with blood and blood products, with the highest
prevalence of hepatitis C infection among those with
repeated, direct percutaneous (through the skin) exposure to
blood (i.e., intravenous drug users, recipients of blood
transfusions before screening of the blood supply began in
1992, and hemophiliacs treated with clotting factor before
1987). Another "key point" was the fact that hepatitis C
can potentially be transmitted with the reuse of needles for
tattoos, body piercing, and acupuncture.
The fast letter indicates, in its Conclusion section, that
the large majority of hepatitis C infections can be accounted
for by known modes of transmission, primarily transfusion of
blood products before 1992, and injection drug use. It also
noted that transmission of hepatitis C virus with air gun
injections was "biologically plausible," notwithstanding
the lack of any scientific evidence so documenting.
It noted that it was "essential" that the report upon which
the determination of service connection is made includes a
full discussion of all modes of transmission, and a rationale
as to why the examiner believes the air gun was the source of
a veteran's hepatitis C.
Analysis
The Board has reviewed all service treatment records and all
available VA treatment records, as well as the reports of the
January 1946, August 1974, and October 2006 VA examinations.
These records do not show that he currently has or has had
hepatitis C since he filed his claim in October 2006.
Service treatment records reveal that the Veteran was
hospitalized from November to December 1969 for infectious
hepatitis. These records, however, do not reflect a later
recurrence of hepatitis or a diagnosis of hepatitis C. The
report of the August 1974 VA examination shows a diagnosis of
infectious hepatitis by history with no residuals.
Similarly, the report of the October 2006 VA examination
reveals a past medical history of hepatitis in service. The
Veteran has simply not submitted or identified any competent
medical evidence showing a current diagnosis of hepatitis C.
The claimant, as a lay person without medical training, does
not meet the burden of presenting competent evidence as to a
diagnosis, merely by presenting his own statements. While
the appellant can attest to factual matters of which he had
first-hand knowledge, e.g., listlessness and weight loss, he
is not capable of making medical conclusions. Routen v.
Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is
generally not capable of opining on matters requiring medical
knowledge"). There is no evidence showing, and the Veteran
does not assert, that he has medical training to provide
competent medical evidence as to diagnosing the claimed
hepatitis C. While the claimant testified that he has been
told that he has hepatitis C, a lay person's account of what
a physician purportedly said, filtered as it is through a lay
person's sensibilities, is not competent medical evidence.
See Robinette v. Brown, 8 Vet. App. 69, 77 (1995).
The record demonstrates that the Veteran was hospitalized in
1969 for infectious hepatitis. Chronic hepatitis was not
found at separation from service. Moreover, in VA medical
records after the Veteran's separation from service, there
was no showing that he currently has or has had hepatitis C
since he filed his claim in October 2006. Furthermore, the
appellant has submitted no evidence to show that he currently
has hepatitis C, or that he has had hepatitis C since he
filed his claim in October 2006. Finally, there is no
competent evidence linking hepatitis C with the claimant's
active duty service.
Accordingly, the claim is denied.
2. Entitlement to service connection for hypertension, to
include secondary to hepatitis C.
Governing law and regulations
Certain chronic disabilities, such as hypertension, are
presumed to have been incurred in service if manifest to a
compensable degree within one year of discharge from active
duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. 38 C.F.R. §
3.310(a). Secondary service connection may also be
established for a nonservice-connected disability which is
aggravated by a service connected disability. In such an
instance, a veteran may be compensated for the degree of
disability over and above the degree of disability existing
prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
Analysis
The Board has reviewed all service treatment records and all
VA treatment records dated in 1984, as well as the reports of
the January 1946 and August 1974 VA examinations. These
records do not show that he currently has or has had
hypertension since he filed his claim in February 2007.
These records also do not reveal any competent evidence of
hypertension during service or within a year of the Veteran's
separation from active duty. Significantly, no service
treatment record, including the retirement examination,
contains a diagnosis of hypertension.
The only evidence of record supporting the claim that the
Veteran has hypertension is his own statements and testimony.
His lay opinion does not constitute competent medical
evidence and it lacks probative value. Routen.
In VA medical records prepared after the Veteran's separation
from service, there is no showing that the appellant
currently has or has had hypertension since he filed his
claim in February 2007. Furthermore, the appellant has
submitted no evidence to show that he currently has
hypertension or has had hypertension at any time since he
filed his claim in February 2007. Finally, there is no
competent evidence linking hypertension with the claimant's
active duty service. As noted above, the competent evidence
does not show a diagnosis of hepatitis C, the appellant is
not service connected for hepatitis C, and as such there is
no competent evidence linking hypertension with hepatitis C.
Thus, the claim is denied.
3. Entitlement to service connection for a left hernia scar.
A veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable (obvious or
manifest) evidence demonstrates that the injury or disease
existed prior thereto and was not aggravated by service. 38
U.S.C.A. § 1111.
VA's General Counsel has held that to rebut the presumption
of sound condition under 38 U.S.C.A. § 1111, VA must show by
clear and unmistakable evidence both that the disease or
injury existed prior to service and that the disease or
injury was not aggravated by service. See VAOPGCPREC 3-2003;
see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).
In VAOPGCPREC 3-2003, VA's General Counsel noted that
"[u]nder the language of [38 U.S.C. § 1111], VA's burden of
showing that the condition was not aggravated by service is
conditioned only upon a predicate showing that the condition
in question was not noted at entry into service."
A pre-existing disease or injury will be presumed to have
been aggravated by service only if the evidence shows that
the underlying disability underwent an increase in severity;
the occurrence of symptoms, in the absence of an increase in
the underlying severity, does not constitute aggravation of
the disability. See Davis v. Principi, 276 F.3d 1341, 1345
(Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2009).
"Clear and unmistakable evidence" is a more formidable
evidentiary burden than the preponderance of the evidence
standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999)
(noting that the "clear and convincing" burden of proof,
while a higher standard than a preponderance of the evidence,
is a lower burden to satisfy than that of "clear and
unmistakable evidence"). It is an "onerous" evidentiary
standard, requiring that the preexistence of a condition and
the no-aggravation result be "undebatable." See Cotant v.
West, 17 Vet. App. 116, 131 (2003).
Analysis
A review of the Veteran's service treatment records from his
first period of active duty shows no evidence of a left
hernia or residual scar. Rather, the appellant testified at
the January 2010 hearing that he initially had a hernia after
his first period of active duty when he was working for
General Motors.
Turning to the second period of service, the claimant's
entrance examination, assuming one was conducted, is not of
record. Hence, the Veteran is entitled to the presumption of
soundness. 38 U.S.C.A. § 1111. The question is whether the
presumption has been rebutted. There is, however, clear and
unmistakable evidence that the hernia scar preexisted prior
to service. The appellant himself testified that he
underwent hernia surgery between his two periods of active
duty. A review of the various physical examination reports
during his second period of active duty reveals the presence
of a hernia scar, and shows that the Veteran reported that he
underwent his hernia surgery in 1947, i.e., while a civilian,
which is consistent with his testimony. There is also clear
and unmistakable evidence that the hernia scar was not
aggravated by his second period of active duty. In this
respect, a review of the service treatment records reflects
no treatment or complaints of scar symptomatology. The
Veteran testified at the January 2010 hearing that his scar
was asymptomatic and that it was never painful, tender, or
swollen. VA records also show no treatment or complaints of
scar symptomatology.
There is competent evidence that the Veteran now has a left
hernia scar. There is, however, clear and unmistakable
evidence showing that the scar was due to preservice surgery
and that it was not aggravated in-service. There is no
competent evidence linking a hernia scar to service. Hence,
the benefit sought on appeal is denied.
In reaching these decisions the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claims, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Entitlement to service connection for hepatitis C is denied.
Entitlement to service connection for hypertension, to
include as secondary to hepatitis C, is denied.
Entitlement to service connection for a left hernia scar is
denied.
REMAND
At the January 2010 hearing, the Veteran testified that he
started receiving treatment at the VA medical center in West
Haven, Connecticut, in October 2009 for cancer. He also
stated that his cancer is a sarcoma. In light of the
appellant's service in the Republic of Vietnam treatment
records from this facility need to be obtained. 38 U.S.C.A.
§§ 5103, 5103A.
At the appellant's 2010 hearing, the Veteran testified that
his bilateral hearing loss was worsened. The United States
Court of Appeals for Veterans Claims (the Court) has held
that when a veteran alleges that his service-connected
disability has worsened since he was previously examined, a
new examination may be required to evaluate the current
degree of impairment. See Snuffer v. Gober, 10 Vet. App.
400, 403 (1997) (a veteran is entitled to a new examination
after a two-year period between the last VA examination and a
veteran's contention that the pertinent disability had
increased in severity). Moreover, while the appellant
underwent VA audiology examinations in October 2006 and April
2008, neither examiner addressed the functional effects
caused by the claimant's service-connected bilateral hearing
loss. The Court has held that "in addition to dictating
objective test results, a VA audiologist must fully describe
the functional effects caused by a hearing disability in his
or her final report." Martinak v. Nicholson, 21 Vet. App.
447, 455 (2007). In light of this, another VA audiological
examination is necessary.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. The RO should obtain any treatment
records from West Haven, Connecticut, VA
medical center since October 2009. Any
such records should be associated with
the Veteran's VA claims folder. If the
RO cannot locate such records, the RO
must specifically document the attempts
that were made to locate them, and
explain in writing why further attempts
to locate or obtain any government
records would be futile. The RO must
then: (a) notify the claimant of the
specific records that it is unable to
obtain; (b) explain the efforts VA has
made to obtain that evidence; and (c)
describe any further action it will take
with respect to the claims. The claimant
must then be given an opportunity to
respond.
2. The RO should undertake any
additional appropriate development as
necessary to adjudicate the Veteran's
cancer claim, such as a VA examination if
the medical evidence shows that the
appellant's cancer might be related to an
event in service. If an examination is
conducted the examiner must be a
physician and must address whether it is
at least as likely as not that any
diagnosed cancer is related to service.
If an examination is conducted the
examining physician must note the
following terms:
* "It is due to" means 100 percent
assurance of relationship.
* "It is at least as likely as not"
means 50 percent or more.
* "It is not at least as likely as
not" means less than a 50 percent
chance.
* "It is not due to" means 100
percent assurance of non
relationship.
If the examiner is unable to provide an
opinion that fact must be stated and the
reasons why an opinion cannot be provided
explained. That is, the examining
physician must specifically explain why
the causation of any diagnosed cancer is
unknowable.
The VA examiner must append a copy of
their curriculum vitae to the examination
report.
3. The Veteran shall be afforded a VA
audiology examination to determine the
current nature, extent, and severity of
his hearing loss. The claims folder is
to be made available to the examiner to
review. In accordance with the latest
AMIE worksheets for rating hearing loss,
the examiner is to provide a detailed
review of the Veteran's pertinent medical
history, current complaints, and the
nature and extent of any disability due
to hearing loss. The examiner must
provide a full description of the effects
of the Veteran's hearing loss on his
ability to work. The examiner must
furnish detail regarding the effects of
the disorder on the claimant's ordinary
activity, and the limitation of activity
caused by the disorder; and fully
describe the functional effects caused by
the hearing loss. The examiner must
provide a rationale for any opinions
given.
4. The Veteran is to be notified that it
is his responsibility to report for any
ordered examination and to cooperate in
the development of the claims. The
consequences for failure to report for
any VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2009). In the event
that the Veteran does not report for any
scheduled examination, documentation
should be obtained which shows that
notice scheduling the examination was
sent to the last known address. It
should also be indicated whether any
notice that was sent was returned as
undeliverable.
5. After the development requested is
completed, the RO should review all
examination reports and medical opinions
to ensure that they are in complete
compliance with the directives of this
REMAND. If the report or medical opinion
is deficient in any manner, the RO must
implement corrective procedures at once.
6. Thereafter, the RO should
readjudicate the claim of entitlement to
service connection for skin cancer, and
entitlement to an increased rating for
bilateral hearing loss. If any benefit
is not granted, the Veteran and his
representative must be furnished with a
supplemental statement of the case and
afforded an opportunity to respond before
the file is returned to the Board for
further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs